Local Bar Associations Getting on Board with Social Media

TASA ID: 4285

Look no further than your local bar to realize that ignorance is no longer an excuse for not appropriately dealing with social media issues for yourself or your clients. With the Philadelphia Bar Association's guidance, released this summer, that excuse will certainly no longer apply to attorneys in the City of Brotherly Love.

The Bar's professional guidance committee included in their opinion that, "A lawyer may advise a client to change the privacy settings on the client's Facebook page, but may not instruct or knowingly allow a client to delete/destroy a relevant photo, link, text, or other content."

The key here is to ensure that, while the information may be hidden from public consumption, it must still be available should it become relevant during litigation. Even this process can be fraught with error so, just as you would with corporate email or network data, we recommend preserving the account rather than leaving the door open for inadvertent spoliation and potential sanctions. With the cost of preserving social media accounts like Facebook, Twitter, Instagram, and others being relatively minor when compared to scope of most matters, we foresee less leniency from the bench in accidental deletion from these discovery sources. Given that many users don't completely understand what the administrative settings on their accounts control, we suggest caution in dealing with any personal software and applications.

To address this issue, the committee specifically writes, "A lawyer may not instruct a client to either alter, destroy, or conceal any relevant information regardless [of] whether that information is in paper or digital form." They continue, "a lawyer must produce any social media content, such as photos and links, posted by the client, including posts that may be unfavorable to the client," just as would be the case with any other forms of discovery data.

As additional apps are constantly being developed for everyday people to create content, a safe rule of thumb is to treat all data as you would documents and data from traditional sources. Legal Support Partners provides forensic preservation and collection services and consulting matters of all sizes.

This article discusses issues of general interest and does not give any specific legal or business advice pertaining to any specific circumstances.  Before acting upon any of its information, you should obtain appropriate advice from a lawyer or other qualified professional.

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